The enforcement of Stormy Daniels’ alleged nondisclosure agreement with Donald Trump matters. But it’s for reasons that most people, maybe even Daniels and her lawyer, may not realize.
As all the world knows, Daniels says she wants out of her alleged “hush agreement” with Donald Trump in which she promised not to go public about their “intimate relationship” in the summer of 2006. She recently brought a lawsuit in California asking a judge to declare the agreement invalid. (Trump's lawyer Michael Cohen claims that he used his own money to "facilitate a payment of $130,000" and that "neither the Trump Organization nor the Trump campaign was a party to the transaction" or reimbursed him.)
In seeming retaliation, Trump’s attorney ran to an arbitrator who promptly ordered Daniels not to violate the confidentiality agreement. (Apparently, there is a greater public interest in stopping Daniels from sharing pillow talk than there was in stopping The News York Times from publishing the confidential Pentagon Papers, which the Supreme Court said represented an unlawful prior restraint on speech.)
Yes, I realize that this is just another wacky sideshow in the Trump administration’s ongoing circus, and this herculean battle over secrecy feels surreal since most people who care already know about Daniels’ alleged affair with Trump. (In Touch magazine even posted an interview with Daniels about the relationship.)
But there’s something more important at stake here than titillation. The core question is this: Should someone running for president be able to buy off anyone with compromising information that could derail his candidacy?
Should someone running for president be able to buy off anyone with compromising information that could derail his candidacy?
Think of it this way. What if Trump had told someone that he had frequent psychotic breakdowns, or the person had witnessed one of these episodes? What if Trump had told someone about his wild night with Moscow prostitutes or the “gazillions” of dollars he owes Russian oligarchs? Should Trump have been able to buy this person’s silence and expect courts to enforce the agreement?
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Surely the public needs to know about a candidate’s psychosis or his vulnerability to Russian blackmail. Shouldn’t a court, confronted by such an agreement, refuse to enforce it?
Of course, no one would argue that Trump’s alleged illicit affair with Daniels is on par with these more extreme examples. It’s not like the voters in the 2016 election didn’t know about Trump’s sleazy ways with women. The infamous Access Hollywood tape told them all they needed to know.
And Daniels’ alleged relationship with Trump was consensual. This supposed "hush agreement” is not, like a Harvey Weinstein contract, covering up sexual harassment or rape. But Daniels’ story was still relevant to voters. If true, it sheds light on Trump’s true character and proves that he is the kind of man who would cheat on his wife four months after she gave birth. It also suggested that’s he’s prone to reckless behavior.
Fortunately for all of us, the law allows judges to deny enforcement of contracts that are against public policy.
Fortunately for all of us, the law allows judges to deny enforcement of contracts that are against public policy. And judges have great leeway in defining public policy. As an old English case colorfully said, public policy is “a very unruly horse, and when once you get astride it you never know where it will carry you.”
Daniels should argue that it violates public policy when a candidate for public office tries to use contracts — backed up by judicial enforcement — to suppress the disclosure of information bearing on the candidate’s qualifications for office.
The precedent a court sets in the Daniels’ litigation might not seem important given the case’s tawdry and seemingly insignificant facts. But it might be important when another case involving more substantial information comes along.
Indeed, BuzzFeed obtained a contract from a Trump campaign adviser which suggested that Trump aggressively uses contracts of silence in other contexts. The nondisclosure agreement forbade the employee from disclosing any information “of a private, proprietary, or confidential nature or that Mr. Trump insists remain private or confidential,” and a nondisparagement clause forbade the employee to “demean or disparage publicly” Trump. Both provisions applied during the employee’s service and “at all times thereafter.”
If a court refused to enforce Daniels’ nondisclosure agreement and left Daniels with the money, it would send a powerful message
One can’t help but wonder what other information about Trump — which the public has a legitimate interest in knowing — is still being kept under wraps by this and other nondisclosure agreements.
And as for the $130,000 already given to Daniels? That does seem a little unfair, but a court confronted with a contract that violates public policy will sometimes leave the parties as it finds them. For example, if a person pays $1,000 for drugs that the dealer never delivers, a court is not going to force the dealer to return the money. It’s not because the court wants to help the drug dealer. It’s because it doesn’t want to help the drug buyer.
If a court refused to enforce Daniels’ nondisclosure agreement and left Daniels with the money, it would send a powerful message to Trump and his lawyers: Don’t try this again.
I can’t wait for the tweet in response to that message!
Alan Garfield is a professor at Widener University Delaware Law School. He is the author of “Promises of Silence: Contract Law and Freedom of Speech” in the Cornell Law Review.